Article 11.2.4 (Allocation between joint and several obligees)

(1) As among themselves, joint and several obligees are entitled to equal shares, unless the circumstances indicate otherwise.

(2) An obligee who has received more than its share must transfer the excess to the other obligees to the extent of their respective shares.

COMMENT

1. Presumption of equal shares

Joint and several obligees may each claim full performance of the whole obligation under Article 11.2.2. However, as among themselves, they are only entitled to their respective shares. These shares are presumed to be equal.

Illustration

1. Co-owners A and B have sold their factory for SFR 10,000,000, and they are joint and several obligees for the payment of the price. However, once the buyer has paid SFR 10,000,000, each co-owner will be entitled to receive its share in the final allocation. In principle, the shares are considered to be equal. Each co-owner should receive SFR 5,000,000.

However, the circumstances may indicate otherwise.

Illustration

2. The facts are the same as in Illustration 1, except that the shares of co-ownership of the factory were not equal, but 75% for A and 25% for B. This will indicate that A should receive SFR 7,500,000 and B SFR 2,500,000.

2. Transfer of excess received

It will usually happen that the co-obligee claiming payment receives more than its share, as it is entitled to claim full performance under Article 11.2.2. When an obligee has received more than its share, it must transfer the excess to the other obligees to the extent of their respective shares.

Illustration

3. The facts are the same as in Illustration 1. A has been paid the full price of the factory, i.e. SFR 10,000,000, and its share of co-ownership was 50%. A must transfer SFR 5,000,000 to B.

Whether the claim of the other obligees to the sums in excess is a property right or merely a personal claim against the obligee who received more than its share is outside the scope of the Principles.